Gujarat High Court
Gamiben Zinabhai Gamit vs The State Of Gujarat on 15 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18543 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18544 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18545 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18546 of 2019
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GAMIBEN ZINABHAI GAMIT
and Others
Versus
THE STATE OF GUJARAT & ORS.
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Appearance:
MR NK MAJMUDAR(430) for the Petitioners
MR HENIL SHAH, MR JEET JOTANGIYA, MR PARTH PATEL AND MS
DHARITRI PANCHOLI, AGPs for the Respondent(s) No. 1,2,3 - State
MS RV ACHARYA(1124) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 15/07/2025
ORAL ORDER
1. Rule returnable forthwith. Learned AGPs waive
service of notice of rule for and on behalf of respondent
State Authorities.
2. With the consent of learned advocates appearing
for the respective parties, matters are taken up for final
disposal today.
3. By way of the present petitions, the petitioners
have almost identically and mainly prayed to quash and set
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aside the decision of the respondent authorities of cancellation
of higher pay-scale granted to the petitioners.
4. Learned advocates for the respective parties have
jointly submitted that the issue involved in these petitions
has been covered by the decision of the Coordinate Bench of
this Court dated 15.07.2022 recorded on Special Civil
Application No.5170 of 2019 and therefore, similar order may
be passed.
5. Since there is a consensus between the parties to
the order dated 15.07.2022 recorded by the Coordinate Bench
of this Court in the case of Pargi Shantaben Rubjibhai
versus State of Gujarat in Special Civil Application No.5170
of 2019, this Court need not to adjudicate these matters any
further. The said order dated 15.07.2022 is as under.
"1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned
AGP waives service of notice of rule on behalf of respondent
State.
2. With the consent of learned advocates appearing for the
respective parties, matter is taken up for final hearing today.
3. By way of the present petition, the petitioners have
prayed for the following prayer:
"(A) Directing the Respondents to grant higher pay scale
of Rs.2000-3500 to the petitioners from the date of
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completion of nine years service and be pleased to direct
the respondents to revise their pay and retiral benefits
accordingly and grant the same with interest at the rate
of 9% per annum.
(B) Be further pleased to direct the respondent
authorities to consequently grant second higher grade pay
scale to the petitioners, having completed requisite length
of service under Government Resolution dated 02-07-2007
with interest at 9% per annum, from the date of grant
of first higher grade and not from the date of regular
promotion to the post of Child Development Programme
Officer.
(C) Be pleased to direct the respondents to refix the pay
and consequential benefits including the retiral benefits
of the petitioners corresponding to 7th Pay Commission
Report upon granting of aforesaid prayers."
4. Facts of the petition indicate that the petitioners were
serving as Child Development Project Officers who were
granted the pay-scale of Rs.2000-3500 from the date of passing
of their departmental examination. The grievance on the part
of the petitioners is that rather than granting such pay-scale
from the date of passing the departmental examination, such
higher pay scale of Rs.2000-3500 was to be granted from the
date of completion of 9 years of service.
5. Ms. Himanshi Balodhi, learned advocate appearing
for the petitioners would submit that not paying of higher pay-
scale of Rs.2000-3500 from the respective dates of their
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entitlement i.e. from the date of completion of 9 years of
service is bad. As far as the case of granting benefits from the
date of passing of departmental examination is concerned, she
submitted that the said issue is decided by this court by way
of Special Civil Application No. 8181 of 1998. She would
submit that the stand of the State to deny the benefit of the
pay-scale of Rs.2000-3500 based on the schedule of the
Government Resolution dated 16.08.1994 on the ground that
the next higher pay-scale after Rs.1400-2600 was Rs.1640-2900
and not Rs.2000-3500 is misconceived. She would submit that
while deciding the question of entitlement of higher pay-scale
of Rs.2000-3500 although in context of it being recovered as it
was so granted by mistake, a Division Bench of this court in
Letters Patent Appeal No. 211 of 2017 had considered the
issue in light of clause 3(3) of the Government Resolution
dated 16.08.1994.
6. Mr. Utkarsh Sharma, learned AGP appearing for the
respondent State relying on the affidavit-in-reply filed by the
State would submit that the petitioners would be entitled to
the grant of higher pay-scale as per the policy of the State
Government as set out in the resolution dated 16.08.1994. He
would submit that as per the Child Development Project
Officer Recruitment Rules dated 06.10.1983 (for short 'the
recruitment rules'), there are four posts of different pay-scales
available under the supplementary post of Child Development
Project Officer. The recruitment rules would indicate that the
pay-scale of Mukhya Sevika was Rs.1400-2300. Even if it is
believed that there was only one feeder post on the basis of
recruitment rules dated 15.12.1989 on the promotional pay-scale
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of Rs.2000-3500 is granted then the cases prior to the
publication of the recruitment rules, the scale would be of
Rs.1640-2900. In support of his submission, he would rely on
the clarificatory resolution dated 16.10.1993 of the State which
clarifies in the explanation no. 18 that in cases in which the
higher pay-scale as per the schedule was due as on 01.06.1987
in those cases even if the promotional post is operational after
01.06.1987 then also the higher pay-scale under the schedule is
receivable. The relevant submission of Mr. Sharma, learned
AGP as set out in the affidavit-in-reply reads as under:
"i. That the petitioners have sought higher pay scale
which are not statutory benefits, it arises on account of
a beneficial policy measures, which cannot be availed as
a matter of right, much or less an
enforceable/fundamental constitutional rights. Thus, there
are no vested enforceable rights to seek for a higher pay
scales and no cause of action arises for the petitioners,
to invoke writ jurisdiction.
ii. The denial to revise the higher pay scale to the
petitioners cannot be viewed as an ifraction of their
fundamental rights. In absence of such infractions, the
writ jurisdiction cannot be invoked.
iii. Notwithstanding the aforesaid preliminary objections,
the present petition on merit does not also deserve to
consider by this Hon'ble Court without prejudice to the
aforesaid submission, the following grounds deserve to
considering while at hence on merit.
iv. The petitioners would be entitled for grant of higher
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pay scale as per the policy of a state, being Government
Resolution dated 16.08.1994, more particularly, as per the
clause - 3 (3). The copy of the said Government
Resolution dated 16.08.1994 is annexed herewith and
marked as ANNEXURE-II.
v. It is submitted that, as per the Child Development
Project Officer Recruitment Rules dated 06.10.1983, there
are four posts of different pay scale available under the
supplementary posts of the Child Development Project
Officer. It includes Social Worker (pay scale Rs.1640-
2900), Block/District Extension Educator (pay scale Rs.
1640-2900), Public Health Nurse (pay scale Rs. 1400-
2300) and MukhyaSevika (pay scale Rs. 1400-2300). The
copy of the Recruitment Rules dated 06.10.1983 disclosing
multiple feeder-cadres is annexed herewith and marked
as ANNEXUREIII.
vi. The Department has published the recruitment rules
dated 15/12/1989 for Child Development Project Officer,
Class-II; as per the provisions of these rules the cadre of
MukhyaSevika (pay scale Rs.1400-2300) was retained as
a Feeder post.
vii. Even if it is believed that there is only one Feeder
post on the basis of the said Recruitment Rules, 1989
and the promotional pay scale of Rs. 2000-3500 is
granted, then the cases prior to the publication of the
said Recruitment Rules wherein, the higher pay scale of
Rs. 1640-2900 is sanctioned or to be sanctioned under
Schedule-1 of G.R dated 16.08.1994, the Finance
Department has released explanations vide Resolution
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dated 16.10.1993. It is clarified in the explanation No.
18 that, the cases in which the higher pay scale as per
the schedule was due on 01.06.1987, in that cases even
if the promotional post is operational after 01.06.1987,
then also the higher pay scale under the schedule is
receivable. The copy of the clarification dated 16.10.1993
is annexed herewith and marked as ANNEXURE-IV."
6.1 As far as the issue pertaining to the judgment in
the Letters Patent Appeal is concerned, he would submit
that at no point the issue with reference to the actual
entitlement of the pay-scale of Rs.2000-3500 was
adjudicated on merits and therefore as per the schedule
to the Government Resolution dated 16.08.1994, the
payscale that the petitioners were entitled to as a higher
payscale was of Rs.1640-2900.
6.2 Paras 8 and 9 of the affidavit-in-reply read as under:
"viii. As far as the issue pertaining to the government
resolution dated 12/3/2018, the beneficiaries, were
extended the first higher pay scale of 2000-3500 instead
of 1640-2900. However, it was subjected to the
proceedings of SCA 2902/2015 and LPA 211/2017 and
therefore, an exclusive order dated 12.03.2018 was passed
in compliance of the said proceedings and judicial
prounouncements, however, at no point of time, the issue
with reference to the actual entitlement of the 2000-
3500 scale was adjudicated on the merits.
9. It is submitted that, the entitled higher pay scale of
the petitioners is shown at ANNEXURE-I, higher pay
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scale applicable to the same as per the schedule to
Government Resolution dated 16.08.1994 is 1640-2900.
Hence, pay scale of Rs. 1640-2900 is entitled to the
petitioners as per the higher pay scale."
7. The issue need not detain the court longer. The policy of
granting higher pay-scale especially clause 3(3) of the
Government Resolution dated 16.08.1994 in context of the rules
of promotion to the post of Chief Development Project Officer
were considered by the Division Bench in Letters Patent
Appeal No. 211 of 2017. Mr. Utkarsh Sharma, learned AGP
may be right in his perception that the issue of the
entitlement was not considered, however, indirectly when the
court was considering the legality of the recovery of the pay-
scale of Rs.2000-3500, the Division Bench had considered clause
3(3), clause 3(7) of the Government Resolution dated 16.08.1994
and the rules known as the Gujarat Public Health Recruitment
Rules, 1989. The contention of the State therefore before the
Division Bench was that in light of the rules when there were
four posts in the feeder cadres, it was contended by the
Assistant Government Pleader that there is no promotional post
of Mukhya Sevika. The Schedule 1 therefore of the Government
Resolution dated 16.08.1994 would be applicable to the case of
the petitioners. It will be relevant to note the contention of the
State then, as it is set out in the judgement of the Division
Bench in paras 6 to 8 thereof which read as under:
"6. Learned Assistant Government Pleader submitted that
the State Government issued Government Resolution
dated 16.8.1994 for grant of higher grade scale to the
government employees on terms and conditions stipulated
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in the said resolution. It is contended that the
government has decided to give such benefit on account
of various factors such as nonavailability of promotional
avenues because of less number of posts and the person
who is working since years on one post may not be
stagnated. However, such benefit is to be extended after
considering the various aspects like feeder cadre, next
promotional post, recruitment rules, passing of
departmental examination and various other factors
stipulated in Government Resolutions dated 16.8.1994 as
well as 2.7.2007.
7. It is contended that before the Gujarat Public Health
Recruitment Rules of 1989 were framed, Rules of 1983
were in force and there were four feedre cadre to the
post of Child Development Project Officer Class II. Such
feeder cadres were (1) Public Health Nurse, (2) Social
Worker (Family Welfare), (3) Block Extension Educator/
District Extension Educator and (4) Mukhya Sevika.
However, in view of the introduction of new recruitment
rules, the only feeder cadre for the promotional post of
Child Development Officer Class II is that of Mukhya
Sevika. The said rules were introduced in the year 1989.
It is submitted that as per Clause 3(3) read with Clause
3(8) of Government Resolution dated 16.8.1994 along with
schedule appended to the said resolution, the higher
grade scale which was available to the original
petitioners as per their prevalent scale would be of
Rs.1640-2900 and not Rs.2000-3500.
8. Learned Assistant Government Pleader submitted that
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as there is no promotional post of Mukhya Sevika, pay
scale prescribed in Schedule I of Government Resolution
dated 16.8.1994 would be applicable to the case of the
petitioners and therefore when it was noticed that the
present appellants have wrongly granted the benefit of
pay scale of Rs.2000-3500, such benefit was decided to
be withdrawn."
8. It is in light of these submissions made by the State
opposing the entitlement of pay-scale that the Division Bench
in para 13 onwards interpreted clause 3(3) of the resolution
and the rules of 1993 considering the decision of the learned
Single Judge in Special Civil Application No. 324 of 2010 and
observed that initially there were four feeder cadre posts to the
post of Child Development Officer and after the recruitment
rules of 1989 were framed there is only one feeder cadre posts
i.e. Mukhya Sevika. The court in unequivocal terms observed
that it is not in dispute that the post of Child Development
Officer is a promotional post and the feeder cadre is Mukhya
Sevika. Interpreting clause 3(3) of the Government Resolution
dated 16.08.1994, the court held that in its view the original
petitioners were eligible to get the higher grade scale of the
promotional post which was rightly granted to them.
Paragraphs no. 13 to 19 of the Division Bench in the Letters
Patent Appeal would read as under:
"13. Having considered the submissions advanced on
behalf of learned advocates and having gone through the
material produced on record, it has emerged from the
record that the concerned original petitioners were
appointed as Mukhya Sevika who have completed nine
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years of service before the Rules of 1993 came into force
on 14.1.1993. At this stage, it is required to be noted
that as per the recruitment rules, for the appointment to
the post of Child Development Officer which is made by
promotion of a person of proved merit and efficiency
from amongst the persons who have worked for not less
than seven years as Mukhya Sevika in the integrated
Child Development Service Block and Nutrition
Programme sponsored by the Government of India or the
State Government or by direct selection or by temporary
transfer on deputation basis from a suitable officer
working in the cadre of Gujarat Development Service
Class II of the Panchayat and Rural Housing
development or District Social Defence Officer Class II of
the Social Defence Department. Thus, post of Child
Development Officer is a promotional post of Mukhya
Sevika.
14. At this stage, we would like to refer to Clause 3(3)
of the Government Resolution dated 16.8.1994 which
provides as under: 3(3) Higher Grade Scale means the
scale of pay of the post of next promotion, provided that
for the employees on posts having more than one
promotional post in different scales of pay their pay of
Higher Grade Scale shall be considered the pay of the
pay scale of the lowest of the promotional posts.
Provided further that in the case where there is no
promotional scale, the H.G.S.shall be the Higher Grade
Scale corresponding to his existing scale of pay as
specified in Schedule (1) annexed to this Government
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Resolution.
Provided further that in case of posts with feeder cadres
in different pay scales, instead of promotional scale, the
Higher Grade Scales of such posts shall be higher grade
scale corresponding to his existing scale of pay as
specified in Schedule(1) annexed to this Government
Resolution.
15. Clause 3(7) of Government Resolution dated 2.7.2007
provides as under: In case of interrupted promotion, if
the period of such promotion is taken into account for
the purpose of increment, it will be considered for the
service of lower cadre for eligibility of Higher Grade
Scale provided that such service in higher cadre (on the
post of promotion) shall not be considered.
16. At this stage, it is also required to be noted that
the Rules of 1993 have come into force after the date on
which the petitioners have completed nine years in the
feeder cadre and therefore the respondents could not
have insisted on passing of examination to make
themselves eligible for the benefits of the higher grade
scale. In similar matter decided by learned Single Judge
of this Court in Special Civil Application No.324 of 2010
and allied matters, it has been observed by the learned
Single Judge in paragraphs 6 and 7 as under:
6. It is clear that the controversy has arisen from
requirement of passing the departmental examination
meant for the promotion to the post of Child
Development Project (Female) Officer. It is undisputed
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that passing of the departmental examination is sine qua
non for grant of higher grade scale. It is also not
disputed that such departmental examination was held
for the first time in the year 1993 and all the
petitioners had become eligible for the first higher grade
scale prior to holding of such examination. The
respondents at the relevant time had also granted the
benefit of the first higher grade scale counting their nine
years service from the date of appointment. Thus, the
petitioners were not at fault, but the lapse on the part
of respondents in not holding the examinations in time
pursuant to the relevant rules caused the problem. The
petitioners were rightly granted benefit of the higher
grade scale after completion of nine years of service at
the relevant time and they cannot be deprived of that
benefit for voluntary act of the respondents in not
holding the examination before the petitioners became
eligible. No opportunity of hearing was given to the
petitioner before retrospectively withdrawing the benefit
of higher pay scale given to them.
7. For the above reasons, the petitions are allowed, the
impugned orders modifying the higher grade scale to the
petitioners and for effecting recovery are set aside and
the earlier orders by which the petitioners were granted
the first higher grade scales after completion of 9 years
in service are restored with direction to grant them the
consequent benefits. Monetary benefits due to the
petitioner under this order shall be paid to the
petitioners within three months from today.
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17. It is not in dispute that the appellants have granted
the benefit of higher grade scale as per the order passed
by this Court in the aforesaid matter.
18. Thus, we are of the view that the original
petitioners were not required to pass the departmental
examination in pursuance to the Rules of 1993 as they
have completed nine years of service before such rules
came into force.
19. As observed hereinabove, initially there were four
feeder cadre posts to the promotional posts of Child
Development Officer and after the recruitment rules of
1989 were framed there is only one feeder cadre post i.e.
Mukhya Sevika. Thus, it is not in dispute that post of
Child Development Officer is a promotional post and
feeder cadre is Mukhya Sevika. Thus, in view of clause
3(3) of Government Resolution dated 16.8.1994, the
original petitioners were eligible to get the higher grade
scale of the promotional post which was rightly granted
to them. Thus, we are of the view that no mistake was
committed by the original respondentpresent appellants
while granting the benefit of higher grade scale to the
petitioners and therefore withdrawal of the same after a
period of 13 years is not permissible. It is reported that
some of the original petitioners who were appointed
during the period between 1976 to 1982 have already
retired in the year 2009 and some of the petitioners are
getting such benefit since the year 2002."
8.1 Therefore, to deny the pay-scale of Rs.2000-3500 on
the basis of the the petitioners having completed 9 years
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of service from the date of departmental examination
appears to be unjust.
9. The petition is accordingly allowed. The respondents are
directed to grant the petitioners higher pay-scale of Rs.2000-
3500 from the date of their respective completion of 9 years of
service and the consequential benefits such as second higher
grade scale etc be revised accordingly. On refixation of pay
based on such benefits and on revision of pension to the
retired employees, the terminal benefits and the consequential
benefits together with arrears shall be paid to the petitioners
within 14 weeks from the date of receipt of the writ of the
order of this court. Rule is made absolute accordingly. Direct
service is permitted."
6. In view of above, the prayers made in these
petitions are allowed accordingly. These petitions are disposed
of. Rule is made absolute. Direct service is permitted.
(SANDEEP N. BHATT,J)
M.H. DAVE
